Inspector Yeung v ABC Seamless Pty Ltd [2006] NSWIRComm 121 | Case summary

An employer must ensure that people (other than the employees of the employer) are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work. 6 In an amended application for order it was alleged: On 1 August 2002 at the site, being 41 Lavender Street Lavender Bay in the State of New South Wales, the defendant, being on that day an employer, did fail to ensure that a person not in its employ (namely James Refalo) was not exposed to risks to his health and safety arising from the conduct of the defendant's undertaking at the defendant's place of work in that: (a) The defendant did not ensure that the use of the ladder for access to and egress from the roof was safe in that it was not properly secured in such a manner as would have ensured its stability; (b) The defendant failed to enforce the carrying out of a site specific risk assessment for the performance of the work at the site; (c) The defendant failed to identify, assess and control the site specific risks; (d) The defendant failed to provide sufficient supervision and instruction of the worker to ensure that he did not expose himself to risks to his safety at the Defendant's place of work by using a mobile phone whilst situated on a ladder. 7 The defendant pleaded guilty to the amended charge. 8 An agreed statement of facts was tendered. In addition to the factual background matters I have already referred to, the statement contained the following additional relevant material: (1) The contract between the defendant the owner did not provide any information relative to the nature of the premises at the site such as the number of storeys, the nature of access, height of premises at various points, the nature of the roof or the pitch of the roof at various points. (2) Mr Refalo had entered into a formal sub-contractor agreement with the defendant on 14 November 2000. The conditions of that sub-contract agreement were noted in the document as follows: (i) All payments for work done are subject to pickup of final payment by the sub-contractor or company representative. (ii) The sub-contractor shall have the right to engage any suitably qualified person to perform the works as specified. (iii) All sub-contractors are to arrange their own accident insurance and cover themselves and any of their employees for workers compensation and superannuation. (iv) Site safety is the absolute responsibility of the sub-contractor. No work is to be commenced until the sub-contractor is satisfied that safe working conditions exist. (v) All sub-contractors are to have and use their own transport to undertake any contract work. (vi) All sub-contractors are required to provide their own tools, silicone, nails, rivets, cement, safety equipment, ladders and all other materials required in order to perform the contract work. (3) Mr Refalo was one of a number of contractors who performed the work pursuant to the contracts undertaken by the defendant. Mr Refalo had been conducting such work pursuant to such contracts entered into by the defendant for a number of years prior to 1 August 2002. (4) On and prior to 1 August 2002, Mr Refalo conducted work for the defendant and generally carried out about 6 contracts per week for the defendant. (5) On and prior to 1 August 2002 Mr Refalo would be allocated work to be performed pursuant to the defendant's contracts a day or so only in advance of the work being undertaken. (6) On and prior to 1 August 2002 the defendant had in place a laminated double sided general instruction sheet for its sub-contractors performing work pursuant to its contracts which was headed on each side as follows: 'RISK ASSESSMENT CHECK LIST FOR ROOF AND GUTTER REPLACEMENT' 'RISK ASSESSMENT CHECK LIST REQUIREMENT FOR ROOF AND GUTTER REPLACEMENT' (7) The general instruction sheet contained in it the following term: 'No breach of policy will be acceptable and work must not proceed until attention to the control measure has been put in place. Site safety remains the absolute responsibility of the sub-contractor and at all times the sub-contractor must be satisfied that safe working conditions exist before commencing work'. (8) The general instruction sheet also contained a list of specific items relating to premises generally, which items needed to be checked in respect of each job with a recommendation as to the nature of control measure required in the event of such circumstances as listed existing. (9) At all material times on and prior to 1 August 2002 the defendant did not enforce compliance with its General Instruction Sheet requirements and did not obtain a completed checklist from its subcontractors in respect of all contracts carried out by and on its behalf. (10) At all material times on and prior to 1 August 2002 the Risk Assessment Check List for roof and gutter replacement did not contain a reference to ladders or specify a control measure for the proper use of ladders. (11) On or about 31 July 2002 Mr Refalo was allocated the job to be carried out in respect of the site. On that day he was informed via telephone by Owen Polybank, Operations Manager for the Defendant, of the basic details of the job for Mr Gurney at Lavender Bay the next day, including the approximate height of the building as 6 metres. (12) The premises at the site, was an old style two storey domestic dwelling of timber and brick construction with a mostly terra cotta tiled roof. The height of the roof at the front of the house facing Lavender Street was two storeys and at the south-eastern side which was adjacent to the park, was a level below street level and appears as a three storey premises with the roof line commencing at about eight metres from the ground level, where there was a section of corrugated iron roofing about 2-3 metres wide before the terra cotta tiled section commenced. (13) On 1 August 2002 Mr Refalo attended the site and carried out installation of guttering as required by the defendant's contract with the owner. In carrying out such work pursuant to the contract Mr Refalo was working alone. Also during the day the worker had contact by mobile phone with Polybank and Wayman at the defendant's office, to discuss conditions and they agreed that Polybank should come to the site. However, subsequently Mr Refalo informed Polybank that he no longer required assistance. (14) During the course of conducting such work on 1 August 2002 Mr Refalo utilised a safety harness whilst he was conducting the gutter replacement, working on the roof of the premises. (15) At all material times on 1 August 2002 Mr Refalo was using his own ladder in order to obtain access to and egress from the roof of the premises. (16) Mr Refalo had been performing work at the site all day on 1 August 2002 when at about 4.30pm, whilst situated on the ladder at the premises and having a conversation on his mobile phone with Wayman, regarding the defendant's job allocation for the worker he fell to the ground and the ladder fell with him. 9 In addition to the statement of facts, the prosecutor tendered a factual inspection report relating to the incident by Inspector Clyant dated 27 August 2002; two coloured photographs taken by Inspector Clyant dated 1 August 2002; and, four coloured photographs taken by Inspector Yeung dated 26 February 2003. 10 The prosecutor also tendered into evidence the affidavit of Norman Abraham Correy, solicitor for the prosecutor. Mr Correy's affidavit went to discussions between the prosecutor and the defendant in 2005 regarding the charge that had been laid against the defendant and another charge against David Shear, a director of the defendant. Mr Shear made certain representations to the WorkCover Authority in August 2005 on behalf of himself and the defendant and raised the possibility of an agreement to conduct a project in accordance with an order under s 116 of the Act as a substitute for a monetary penalty against both defendants. It may be noted the defendant, ABC Seamless, had pleaded guilty in March 2005. 11 In the result, ABC Seamless entered a guilty plea to an amended charge under s 8(2) and the charge against Mr Shear was withdrawn. The prosecutor declined to agree to an order under s 116 of the Act. It is the guilty plea to the amended charge with which I am concerned. 12 The prosecution also sought to put before the Court medical evidence to establish causation between the injuries sustained by Mr Refalo and the subsequent taking of his own life. The defendant objected to the tender of this material. The Court required the parties to address the issue of the medical evidence in supplementary submissions before the Court determined whether to receive it into evidence in the proceedings. Those written supplementary submissions were subsequently provided. 13 In Maddaford v CSR Limited and Mulgoa Quarries Pty Ltd [2004] NSWIRComm 337 at [17] - [18], it was held that although the damage or injury does not, of itself, dictate the seriousness of the offence or the penalty, a breach where there was every prospect of serious consequences may be assessed on a different basis to a breach unlikely to have such consequences. In such a case, the occurrence of death or serious injury may manifest the degree of seriousness of the relevant risk: See also Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at [94] and [95]; WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited and Anor (2000) 95 IR 383 at 428; and Morrison v Powercoal Pty Ltd (2003) 130 IR 364 at [32]. 14 Plainly, evidence of death or serious injury may be a relevant matter in any sentencing proceedings under the Occupational Health and Safety Act because it may manifest the degree of seriousness of the risk. What the prosecutor seeks to prove here is that the risk to health and safety of falling from a roof was a most serious risk as evidenced by the death of Mr Refalo. There are two things to be said about this: First, it does not take a death to satisfy the Court that the risk of falling from a height of about 6-7 metres is a very serious risk. Given the Court's experience of cases involving falls from height, it is readily within contemplation that death might result from a fall of 6-7 metres. In any event, Mr Refalo suffered very serious injuries as a consequence of his exposure to the risk of falling. Second, even if it was necessary to have regard to the occurrence of death to assess the seriousness of the risk, in this case I would require more than a tender bundle of written expressions of opinion, albeit purportedly expert medical opinion, to establish the link between Mr Refalo's fall and the subsequent taking of his own life. 15 Notwithstanding the absence of a victim impact statement, I permitted Mrs Refalo to express her feelings regarding the loss of her son. She blames the defendant. Perhaps it is only a mother who has lost her son in such tragic circumstances that can understand the loss and grief felt by Mrs Refalo and, inadequate as it may be, the Court can only express its deepest sympathy for Mrs Refalo and her family. 16 But these sentencing proceedings, unlike a prosecution under s 32A of the Act, are not about punishing the defendant for the death of James Refalo. The proceedings are essentially about assessing the nature and quality of the defendant's failure to ensure that persons were not exposed to risks to their health and safety. That involves an assessment by the Court of the seriousness of the risk caused by the defendant's acts or omissions. That a young man, James Refalo, took his own life following the fall on 1 August 2002, terrible tragedy that it was, is not a factor the Court could or should take into account in determining penalty. I do not propose to admit the medical records. 17 For the defendant David Shear gave extensive affidavit and oral evidence. Mr Shear was a Civil Engineer by profession. As a director of the defendant, Mr Shear was responsible for, amongst other matters, occupational health and safety, the engagement of sub-contractors and general supervision of work undertaken by the defendant. 18 At the date of the incident Mr Shear deposed the defendant engaged fourteen full time employees, including Owen Polyblank, Operations Manager and Trevor Rae, Maintenance Manager. In addition to these employees, the defendant also engaged approximately ten subcontractors who performed the re-guttering work. Mr Polyblank's duties involved the overall supervision, assessment and training of sub contractors. Mr Rae had been a licensed roof plumber since 1986. 19 Mr Shear's evidence was that the following procedure was the normal procedure adopted by the defendant when dealing with sub-contractors: · Work which had progressed from the initial ABC screening was offered to a subcontractor who could accept or reject the offered work. · Subcontractors would be given a copy of the customer's contract as well as the check measure sheet which detailed contract site and safety related conditions. · Subcontractors were able to accept work from any other source. · The hours a subcontractor worked was of their own choosing, providing that they were able to come to reasonable arrangements with ABC's clients. · If a subcontractor agreed to accept a job, the subcontractor would then make an assessment of the safety considerations of the job (i.e. whether the job could be undertaken safely). 20 Mr Shear described Mr Refalo's training and his progression through various stages to the point where on or about 2 November 1999, Mr Refalo commenced working on his own on single storey jobs, on what the defendant's management assessed to be low risk jobs. In his first year undertaking contracts for the defendant (that is, until 27 July 2000) Mr Refalo completed 158 contracts with Troy Burgess, an experienced subcontractor and 30 lower risk single storey contracts without the assistance, supervision or presence of Mr Burgess or any other trainer. 21 In his second year (i.e., from 28 July 2000 until 27 July 2001) Mr Refalo completed 149 jobs with Mr Burgess or another other competent installer engaged by the defendant and 112 jobs without Mr Burgess' assistance. In his third year (until end July 2002) Mr Refalo completed 38 jobs with Mr Burgess or another competent installer, and 246 jobs without Mr Burgess. 22 Mr Shear stated that by the time of the accident date, Mr Refalo had in total completed more than 720 contracts for the defendant, many of them on his own, and was considered by members of the defendant's management, to be a highly competent, experienced and responsible installer, with an excellent work ethic and regard for safe work practices. Mr Shear said he had no recollection of Mr Refalo being involved in any safety breach or unsafe work practice on any job prior to the accident date and a search of the defendant's records has not disclosed any report of such an occurrence. 23 The training provided by the defendant to Mr Refalo included training in the use of a safety harness, safety issues generally, the performance of risk assessments and practical training on-site. Mr Refalo provided his own equipment, including motor vehicle, tools, safety equipment, ladders and all other tools in order to perform the contracted work. Mr Refalo also provided silicon, nails, rivets and cement. If there was any other product required (other than the guttering materials supplied by the defendant) Mr Refalo would purchase it and add it to his invoice to the defendant. Mr Refalo was also responsible for transport to and from work sites. 24 Mr Shear deposed that: In early 2002 it was decided by myself in consultation with other ABC managers that ABC's sub contractors would be well served if an external safety specialist company was employed to further advance their training relating to working at heights and accessing work at heights. To this end Total Height Safety Pty Limited ("THS") was appointed by ABC to devise and provide to sub contractors regularly engaged by ABC an appropriate safety course which specifically considered the peculiarities and safety needs of the re-guttering industry. THS devised a one day course in accordance with these instructions ... It was agreed by me with THS that to ensure maximum benefit for participants in the course, numbers should be restricted to 10, and as a consequence the course was conducted over 3 separate days in May 2002, so that all of ABC's regular subcontractors could attend the course on one of those days. ... I note that the course ... does not correctly reflect the breadth of the course actually delivered. ... A number of ABC contractors attended this first day of the course, together with Polyblank, but Refalo was not amongst this group. After the first day of the course Polyblank approached me to request that THS include greater emphasis on ladder safety in the course, and as a consequence the course content for all subsequent days was adjusted to meet Polyblank's request. The course included both theoretical and practical assessment, and involved a greater emphasis on ladder safety. ... When the THS course was conducted on 10 May 2002, Refalo was in attendance with other ABC subcontractors, along with Rae, one of his supervisors. On that day, Refalo was provided with training in "Safe Work Practice for Access and Working at Height". At that course that day, Refalo submitted written answers to THS examination and assessment of his comprehension of Risk Assessment via "- Hazard Identification Checklist." (Dated May 2002). Also on that day Refalo submitted written answers reflecting his understanding of the theoretical component of "height and safety" aspects of our work. ... On 10 May 2002, after being provided with THS training, Refalo was assessed and obtained a Certificate of Attainment in "Safe Work Practice for Access and Working at Height". ... ... As evidence of the level of competency I and ABC managers thought Refalo had achieved , Refalo was assigned by ABC to provide training to two other sub-contractors for ABC - Darren Christ ("Christ") (whose training commenced on 29 October 2001) and Hugo Alexander Dos Santos ("Dos Santos") (whose training commenced on 31 May 2002). Polyblank later determined that Dos Santos was not a suitable candidate to progress to being a sub contractor with ABC, so his training was discontinued. That outcome was not the responsibility of Refalo. Christ has however progressed to completion of the ABC training program and has subsequently successfully completed 204 re guttering jobs for ABC to date. Refalo's training of Dos Santos is referred to in Dos Santos' Statement to WorkCover Inspector Thomas Yeung on 26 October 2004, which states: "Q22: What did you learn from James in relation to the use of ladders on the site for ABC? A: The basis of the way of using the ladder, setting in a proper secured position, tying ladder off the support beam on the fascia". 25 Mr Shear described the defendant's safety policies that applied prior to August 2002. Mr Shear noted that: [T[here is no record of any accident involving a subcontractor undertaking guttering work for ABC in the period from the commencement of ABC's operations in 1991 until the accident date, and no further accidents recorded thereafter. 26 As to the assessment of risks at the Lavender Bay site Mr Shear pointed to a statement made by Mr Boris Madorski (a salesman employed by the defendant) to Inspector Yeung dated 14 May 2003 wherein the following answers to questions from the Inspector were provided: Q68: What did you look at when you visit and inspect a house for preparing a quotation for the customer prior to 1 August 2002? A: I look at the access to the building, height of the building, type of roof, scope of work to be done, anything that makes the job more difficult or easy and suitable guttering products. Q69: What did you look at when you visited and inspected the house 41 Lavender Street, Lavender Bay for preparing the quotation for Mr K Gurney? A: All the above listed. Q70: Did you consider any safety issues in relation to the contract work to be carried out when preparing a quotation for ABC Seamless Pty Ltd prior to 1 August 2002? A: Yes. Q71: Did you consider any safety issues in relation to the contract work to be carried out when preparing the Quotation No. 59160? A: Yes. Q72: What safety issues did you consider in relation to the contract work to be carried out when preparing the Quotation No. 59160? A: Height, access to the building and roof structure. [Q & A 73 not relevant, not reproduced] Q74: Did you carry out a risk assessment of the proposed work for the premises, 41 Lavender Street, Lavender Bay when you prepared the Quotation 59160? A: Yes, I assessed the risk. Q75: Was the risk assessment documented? A: Yes, it was documented in the check measure sheet and in the office copy of the quote, reflected in the pricing as "EXTRA" for job difficulty. Q76: What is the check measure sheet? A: It is a sheet prepared by ABC Seamless which a Sales Representative fills out. It gives job details, height of the building, type of the material of the roof, diagram of the guttering, all the measurement of the gutters and down pipes and any accessories needed and any other special notes in relation to the job and it goes to ABC Seamless together with the contract when the quote is accepted. Q77: What was the risk you have assessed in the premises at 41 Lavender Street, Lavender Bay when you prepared the Quotation No. 59160? A: It was height of the building, exposed rafters end and limited access." 27 Mr Shear deposed further that: I am informed by Polyblank that on the accident date at about 9.24am he had a telephone conversation with Refalo. I refer to the Statement given by Polyblank to Inspector Yeung on 4 December 2002 in which Polyblank is recorded as stating the following in answer to questions 87 and 88: Q87: Did you have any conversation with Refalo during the day on 1 August 2002? A: Yes. Q88: What did you talk about? A. He had a concern about an area of work on the roof. I asked him if it was a danger situation and he said no just difficult. I asked if he was wearing a harness, he said yes. The area of concern was a slippery section of roof due to morning dew. I said to stay away from that section of the roof and assess what happened to it during the day and that I would come down to the site. He said he didn't think that was necessary. I said I would do it anyway as I had Trevor Rae with me for that day. I also said that I had one more site at Haberfield to call into before coming down. We then left the office, Trevor and myself. We arrived at the site at Haberfield, I received a phone call from James asking if I was on my way down, I said yes we had this one job to inspect first. He said not to come down that he had already completed the area in question. I asked him if he was absolutely sure that he didn't need assistance. He said I would be wasting my time. That was the end of the conversation so I didn't go. I understand that at approximately 9.30am on the incident date, Cliff Danckwardt ("Danckwardt") ABC's Production & Maintenance Engineer delivered the guttering materials to Refalo at the site, and observed that Refalo was wearing his safety harness. I also understand that, in accordance with normal practice, Danckwardt collected the Check Measure Sheet from Refalo. The presence of the Check Measure for the property in the files of ABC confirmed to me that in this case normal practice had occurred. ABC telephone records reveal that at 4.13pm on the accident date a telephone call was made from ABC premises to Refalo, which lasted 4 minutes and 42 seconds. This telephone call was made by Wayman to Refalo regarding work for the following day. ... I also refer to the statement given by Wayman to Inspector Yeung in this matter on 12 December 2002 at question 61 where Wayman states: Q61: What did you talk about with James Andrew Refalo on the phone prior to the accident happened on the construction site at 41 Lavender Street, Lavender Bay on 1 August 2002. A: I actually spoke to him twice in the afternoon. The first time was to allocate a job to him for the next day and he told me he wouldn't finish where he was at Lavender Street and the second time I rang him back with another job for the following day an spoke to him for 3-4 minutes and gave him the address for the next day and he spoke to me about wanting to do some work with one of our other works to get some experience in a special type of guttering that we fit. That is when the accident happened. 28 Mr Shear described the improvements made to the defendant's occupational health and safety policies and procedures following the accident. This included additional training for employees and contractors, changes to risk assessment procedures, spot checks on site by supervisors and a requirement that contractors have all mobile phones diverted or left in a motor vehicle while work is in progress. Several alternatives to using a ladder and safety harness for the re-guttering process were investigated but it was concluded that: [T]he use of secured ladder and a safety harness in restraint mode were the safest and best options currently available for the type of work performed by ABC. The use of a safety harness in restraint mode would protect the person wearing the harness from falling off the roof, and avoids the "pendulum shock effect", as well as recovery risks associated with a "shock absorbed" harness. The use of the harness in restraint mode effectively means that the person wearing the harness is restrained from falling off the roof in the first place. The system requires that the installer only allows sufficient "slack" between himself and the anchoring points to allow him to move to the perimeter of the roof, but no further - that is, rope securing the harness is limited to the edge of the roof only, but no further. 29 Mr Shear investigated ladder securing devices in Australia and overseas, expending some $40,000 in that regard. In 2005 Mr Shear held discussions with the WorkCover Authority including discussions about what assistance could be provided in connection with research into ladder securing devices and safety processes generally. Mr Shear stated: On the 20 October 2005, I forwarded to WorkCover a list of discussion points relating to an OHS Project, and in particular to "Improvement of Ladder Safety Through Increased Ladder Security". ... 30 Mr Shear was subsequently advised that WorkCover did not consider that "a s 116 project on its own is an adequate response in this matter, given the gravity of the offence" and that WorkCover was opposed to the proposal. 31 Mr Shear described events after the accident. He described how relationships between the defendant's management and the Refalo family declined to the point where it was alleged that Mr Refalo's father, Joe, had "threatened to kill the 2 persons at ABC responsible for his son's death" and what measures were taken by the defendant to deal with the alleged threat. Mr Shear deposed in this regard: The accident and subsequent death of Refalo has had a significant impact upon Meyerowitz, me and our respective families both psychologically and financially. The trauma of the accident and the subsequent death threats made by Joe Refalo resulted in me engaging security guards, installing a home security alarm, delisting my telephone number and address and evacuating my family home along with my family. As a further part of my reaction to these events I raised these matters with my family Doctor, which initiative led me to consulting Dr Michael Diamond, psychiatrist, for professional counselling to assist me in dealing with the psychological impact of the accident, the subsequent death of Refalo, and the threats made by Joe Refalo. ... I am informed by Mr Meyerowitz and verily believe that on or about February 2005 Meyerowitz commenced seeing Ms Natalie Yamey, Social Worker, for counselling to assist him in dealing with the psychological impact of the accident, the subsequent death of Refalo, and the threats made by Joe Refalo. ... 32 Mr Shear described events after the accident. He stated: The amount of guttering contracts completed has dropped by approximately 30% since the accident date. The downturn can be attributed to our reluctance to take on higher risk work, even where appropriate risk control measures can be implemented. The risk profile of our business has largely changed with the accident having a profound effect on all employees and sub contractors. The current drought has to a lesser extent also contributed to the downturn in guttering sales. Although the downturn has resulted in fewer sales, the amount of employees (14), salesmen (9) and contractors (10 core teams) has remained fairly static, with our desire not to implement redundancies or discontinue the use of some of the sub contractors. ... From its inception ABC's OH&S Procedures had evolved to a point, prior to 1 August 2002, where a great deal of time, effort and resources had been applied to appropriate safety procedures and training. This commitment to safety has been further strengthened by the accident on the 1 August 2002, where the repercussions have significantly affected the basis upon which the business operates and in our future decision making. While the impact of the accident to Refalo was deeply felt by me and the other members of ABC management, it is the only accident of which I am aware involving an ABC subcontractor since ABC's inception in 1991. As a small and tightly knit company, with long term personal and working relationships with our employees and subcontractors, we are extremely remorseful and saddened by the accident involving James Refalo. I deeply regret that ABC has contravened the law and that Refalo suffered injury as a consequence of that contravention. Unfortunately, and in hindsight, it is evident that one can do more to safeguard against an accident such as that experienced by Refalo occurring. We can always further improve OHS procedures and improve training and supervision. We hope that our further investigations and research on ladder securing devices both in Australia and overseas will lead to new or improved devices being introduced into the Australian market, which would have significant potential to improve safety for workers generally in the building and construction industries. Consideration

Inspector Yeung v ABC Seamless Pty Ltd

At a glance

Court

Decision date

Before

Source

Judgment (14 paragraphs)

Parties

Cases Cited (6)

Cited By (1)